Crime

Virginia Police Are So Casual About Violating This Mother's First Amendment Rights They Must Not Know Those Exist

They're also abusing their FOIA discretion, but at least the police do that all the time.

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(Photo by David McNew/Getty Images)

When the chief law enforcement officers in the country think the First Amendment is a weapon for white supremacy, and not a shield against it, that’s going to filter down to the local level. President Donald Trump and Attorney General Jeff Sessions are hostile to the freedom of the press, and the freedom of dissent. They are why we’ve got Lieutenant Governors threatening to block legislation because Delta grew a conscience. They are why we’ve got school administrators threatening to punish students who protest the NRA.

But nobody does casual violation of the First Amendment like local law enforcement. Local cops will snatch the life out of you for back-talk, then tell your family that you “failed to comply” with their commands.

Yesha Callahan’s son survived his encounter with police. The Virginia State University freshman was pulled over last month on suspicion of being black (the police are calling it marijuana something or other, but I’ve long since stopped trying to sugarcoat their probable cause for them). Police saw something in his waistband, they claimed, and pulled a gun on him. For 38 seconds, the boy’s life was at the mercy of the state. But he kept his cool, and survived. No shots were fired.

Callahan, though, was not merely satisfied that her boy was spared an execution. Callahan is a writer for the Root and shared her experience there. She tweeted about it. She made herself an issue for the Chesterfield County Police Department. She filled out a FOIA request demanding that the department release the body cam footage of her son’s nearly deadly traffic stop.

The Department denied her request.

Callahan’s son was not charged in connection with the incident. He didn’t even get a ticket. But Chesterfield police denied the request, saying the footage was subject to an “ongoing investigation.”

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This FOIA exception is used all the time by law enforcement. The exception is only supposed to be for evidence or documents that directly correlate to impending proceedings, but cops are using it as a first resort to keep their deeds secret, and it doesn’t appear that anybody is checking to make sure that the cops are using their discretion appropriately.

But this is a special case. Most of the time, we can only guess at what the real motives are for turning down a FOIA request. Here, these cops actually made the mistake of telling the truth about their motives. From the Richmond Times-Dispatch:

[Chesterfield Chief of Police, Col. Jeffrey S. Katz] says part of the reason the department has not released the video to Callahan is that she has “an anti-law enforcement agenda.”

Umm… that’s not how the First Amendment works… AT ALL! You can’t just deny a legitimate request for government records because you’re afraid the person who wants the documents wants to make you look bad. It’s FOIA. THE POINT IS TO MAKE YOU LOOK BAD if you do BAD THINGS.

I spoke to Callahan and she said one of her tweets she posted immediately after the incident really pissed Katz off.

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I’m sure cops don’t like being called “pigs.” And I know some people reading this will say, “Well, you can’t call the cops names and expect them to help you out.” So… this seems like a good time to remind people that Callahan wasn’t asking for a goddamn FAVOR. She made a FOIA request. She doesn’t have to be nice about it. She could walk in there and say, “Oink, oink, motherf**ker, hurry up and fetch the documents I’m entitled to see.”

Katz isn’t just admitting to a violation of Callahan’s First Amendment rights, he went so far as to give a detailed explanation of his motives. Katz says that he was willing to make the body camera footage available to Callahan in police custody, but wouldn’t release it to her as part of her FOIA request. Why? Get a load of this:

“I believe we have a responsibility to maintain custody of the video and not put it in the public domain,” he said, “because we want to ensure that it is not spliced, that voice overs are not placed over it and that we can maintain and control the authenticity of the video. But we are more than willing to share the video with anybody who wants to come in and view it.”

Katz acknowledged that the contentiousness between the department and Callahan, a journalist, has been factored into the decision not to release the footage…

“This is a video we would want out in the public,” Katz said. “There’s nothing in the video bad for the officer or bad for the department or bad for the profession.”

HE CAN’T DO THAT! He can’t make that call. Nowhere in the FOIA exceptions does it say “release the documents, unless you are worried that the black journalist asking for them lacks integrity. Then, f**k ’em.” Callahan’s status as a journalist is not allowed to be a factor in Katz’s decision.

Remember, the police chief made these statements on the record to a local paper. But Katz wants the story out there that there’s a video that shows no wrongdoing by the cops that the Department would WANT out in the public but… he just can’t trust the black journalist enough to release it.

Chesterfield PD has not responded to my requests for comment at this time. I’d like to know what other publications or journalists should not bother making FOIA requests because of their anti-law enforcement agenda. Those aren’t idle questions. Journalists make most of the FOIA requests. If only journalists with a pro-police agenda have those requests honored, you can see the First Amendment problems. Heck, I might make a FOIA request to see the “Unconstitutional list of publications Chesterfield police will not grant FOIA requests to.” But… even though Katz has been stupid enough to admit to his violation out loud, I doubt he put it in writing.

Callahan, I should note, does not think she has such an agenda: “I have an anti-police brutality agenda.” I can’t imagine what Katz would think of me.

You see the problem here. Katz has taken a kind of normal, run-of-the-mill abuse of discretion and turned it into a full-blown First Amendment violation. His department needs to be sued. Katz needs to be removed. First Amendment lawyers are going to want to take this case. And if the peanut gallery that only talks about free speech when it benefits the alt-right actually cared about the First Amendment, they’d be demanding the same things.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

What It Feels Like to Receive a Call From Your Child After Cops Draw Their Guns on Him [The Root]

I watched the video of the traffic stop of a VSU student by Chesterfield police, and here’s my take [Richmond Times-Dispatch]

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